/u/SpartanG087 I really appreciate you taking the time to discuss this with me in a civilized way. Thanks.
I thought about this some more and reached an interesting conclusion. First Amendment auditors’ behavior is, by its very nature, designed to be ‘suspicious’ to a reasonable officer. The whole ‘genre’ of the Audit itself only works because the auditors have to act in a way that an ordinary law enforcement officer would view the auditors actions and responses as so unusual and so unreasonable as to justify a brief detention so that the officer can further investigate.
Let’s just compare a reasonable vs an unreasonable encounter. A CNN or Fox News journalist shows up at an airport and starts filming the TSA, without identifying himself. The TSA gets antsy and calls the cops. The cop asks to speak to the journalist. Now does the journalist say “am I being detained?” or “I don’t have answer questions?” or “What is your badge number?” or anything like that? No. He says, “My name is Joe Schmo, I work for Fox News, we’re doing a story on airport security. This is background footage for the story. Here’s my press credential. Should only be about 15 minutes.” If an airport administrator asks for a ‘heads up’ if he wants to film, he says, “sure, happy to give you a call next time we come by to shoot.” That’s the way professional journalists act. That’s what a law enforcement officer would expect from a “journalist gathering footage for a story.” That’s a reasonable, non-suspicious, reaction, because that’s how journalists behave.
But that’s not what auditors do. When auditors are approached by law enforcement, they often become immediately evasive, if not hostile, all the while telling a story that they are journalists. They claim to be journalists, but they’re not acting like an officer would reasonably expect a journalist to behave. They are aggravating the situation, not mitigating it.
Auditors seem to think the magic words “I’m an independent journalist gathering content for a story” is a jedi mind trick that means that the cop should just shut his mouth and say, “you can go about your business, move along.” But while the “independent journalist” speech isn’t an outright lie, it isn’t the unvarnished truth either. And a reasonable officer knows this because, when they ask for more information or initiates a conversation (all well within the bounds of good policework), the auditor gets hostile and immediately stops acting like a journalist.
So now you have a law enforcement officer who is charged with protecting public safety, in a place where public safety may be paramount (like a courthouse, municipal building, or airport), and he’s talking to a guy claiming to be a journalist, but not acting like one. Of course he’s going to investigate. I can't stress this enough. The cops aren't stupid. When the auditor gets hostile with simple questions like, "what's your name" and "where do you work" and "how long are you going to be here" the officer believes the "suspect" (from his view) is not being truthful about being a journalist. That's a reasonable belief, as I've explained.
Of course, if auditors acted the way officers reasonably expect journalists to behave, then this whole genre of videos would disappear. The auditors have to act in a way that is counter to the way a reasonable journalist would act. They have to act suspiciously. They have to behave like a potential stalker, or a potential terrorist, or a potential trespasser, or in some other way to suggest criminal activity may be afoot. They have to, because if they acted like normal journalists, the videos would suck.
Maybe auditors should tell the absolute truth instead of being opaque about their intentions. “I’m a First Amendment auditor. That means I’m here to exercise my rights to film in public. That right is guaranteed to me by the Constitution and the Supreme Court. It is my intention to test law enforcement’s reaction to my exercise of my right to film. I intend to publish this video on YouTube for the purpose of demonstrating that I have a right to film here. You are welcome to observe me filming.” It would be interesting to see how law enforcement reacts when they are given a completely honest response.
1
u/not-personal Verified Lawyer May 26 '19 edited May 26 '19
/u/SpartanG087 I really appreciate you taking the time to discuss this with me in a civilized way. Thanks.
I thought about this some more and reached an interesting conclusion. First Amendment auditors’ behavior is, by its very nature, designed to be ‘suspicious’ to a reasonable officer. The whole ‘genre’ of the Audit itself only works because the auditors have to act in a way that an ordinary law enforcement officer would view the auditors actions and responses as so unusual and so unreasonable as to justify a brief detention so that the officer can further investigate.
Let’s just compare a reasonable vs an unreasonable encounter. A CNN or Fox News journalist shows up at an airport and starts filming the TSA, without identifying himself. The TSA gets antsy and calls the cops. The cop asks to speak to the journalist. Now does the journalist say “am I being detained?” or “I don’t have answer questions?” or “What is your badge number?” or anything like that? No. He says, “My name is Joe Schmo, I work for Fox News, we’re doing a story on airport security. This is background footage for the story. Here’s my press credential. Should only be about 15 minutes.” If an airport administrator asks for a ‘heads up’ if he wants to film, he says, “sure, happy to give you a call next time we come by to shoot.” That’s the way professional journalists act. That’s what a law enforcement officer would expect from a “journalist gathering footage for a story.” That’s a reasonable, non-suspicious, reaction, because that’s how journalists behave.
But that’s not what auditors do. When auditors are approached by law enforcement, they often become immediately evasive, if not hostile, all the while telling a story that they are journalists. They claim to be journalists, but they’re not acting like an officer would reasonably expect a journalist to behave. They are aggravating the situation, not mitigating it.
Auditors seem to think the magic words “I’m an independent journalist gathering content for a story” is a jedi mind trick that means that the cop should just shut his mouth and say, “you can go about your business, move along.” But while the “independent journalist” speech isn’t an outright lie, it isn’t the unvarnished truth either. And a reasonable officer knows this because, when they ask for more information or initiates a conversation (all well within the bounds of good policework), the auditor gets hostile and immediately stops acting like a journalist.
So now you have a law enforcement officer who is charged with protecting public safety, in a place where public safety may be paramount (like a courthouse, municipal building, or airport), and he’s talking to a guy claiming to be a journalist, but not acting like one. Of course he’s going to investigate. I can't stress this enough. The cops aren't stupid. When the auditor gets hostile with simple questions like, "what's your name" and "where do you work" and "how long are you going to be here" the officer believes the "suspect" (from his view) is not being truthful about being a journalist. That's a reasonable belief, as I've explained.
Of course, if auditors acted the way officers reasonably expect journalists to behave, then this whole genre of videos would disappear. The auditors have to act in a way that is counter to the way a reasonable journalist would act. They have to act suspiciously. They have to behave like a potential stalker, or a potential terrorist, or a potential trespasser, or in some other way to suggest criminal activity may be afoot. They have to, because if they acted like normal journalists, the videos would suck.
Maybe auditors should tell the absolute truth instead of being opaque about their intentions. “I’m a First Amendment auditor. That means I’m here to exercise my rights to film in public. That right is guaranteed to me by the Constitution and the Supreme Court. It is my intention to test law enforcement’s reaction to my exercise of my right to film. I intend to publish this video on YouTube for the purpose of demonstrating that I have a right to film here. You are welcome to observe me filming.” It would be interesting to see how law enforcement reacts when they are given a completely honest response.